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In the previous article, I briefly outlined, based on our experience in tax cases, the procedural paths to recover incorrectly paid registration relief.

Already then, I identified several possible courses of action: an application for a refund of overpaid tax, reopening of administrative proceedings, and reopening of judicial-administrative proceedings. I will now elaborate on these considerations.

1. Reopening of Administrative or Judicial-Administrative Proceedings
This is the appropriate procedure when, in the past, we submitted tax returns (PIT-38) claiming the registration relief, but the tax authorities disagreed with our calculated tax base, resulting in the initiation of administrative proceedings.

This method is generally not appropriate if we submitted a tax return omitting the registration relief and subsequently applied for installment payment of the tax due.

If an administrative decision was issued against which we filed a complaint, judicial-administrative proceedings were initiated. Following the issuance of a new interpretation in the Constitutional Tribunal’s judgment of 9 July 2025, case file number SK 64/20, it is possible to reopen these proceedings.

However, a problem arises – when is it possible to file a request for reopening proceedings?

• According to Article 145a of the Administrative Procedure Code, a request for reopening must be submitted within one month from the date the Constitutional Tribunal’s ruling comes into force.
• According to Article 272 of the Law on Proceedings before Administrative Courts, a request for reopening proceedings must be submitted within three months from the date the Constitutional Tribunal’s ruling comes into force.

A Constitutional Tribunal ruling comes into force on the day it is announced (Article 190 of the Polish Constitution).

The catch is that currently, Constitutional Tribunal rulings are not being announced due to irregularities in the Tribunal’s functioning and the risk of rulings being enacted that conflict with fundamental principles of the Polish constitutional system. As of today (24 September 2025), the judgment of 9 July 2025, case SK 64/20, has not yet been published in the Journal of Laws.

In such a case, the answer is simple – the deadline for filing the above remedies has not yet begun. One must wait for the publication of the Constitutional Tribunal’s ruling (which may not happen at all).

2. Application for Refund of Overpaid Tax
This remedy is used if we did not claim the registration relief on the tax return and paid an increased amount of tax, even though, according to the interpretation provided by the Constitutional Tribunal on 9 July 2025, we were entitled to the relief.

Nevertheless, there is a fundamental problem with this remedy. According to Article 80 of the Tax Ordinance, the right to a refund of overpaid tax expires five years from the end of the calendar year in which the refund deadline passed. In other words, the tax authority’s objection has a legal basis in claiming that the tax liability from 2010–2011 has expired.

This can be challenged by arguing that such proceedings violate the principle of equality (a person who intended to use the registration relief but received a negative decision from the authority can use a legal remedy, while a person who did not claim the relief despite having the possibility would no longer be able to request a refund – even though both are in the same situation). Therefore, the tax authorities should not reject the refund application solely because the limitation period has expired.

Paradoxically, due to the lack of dependence of the application on the announcement of the Constitutional Tribunal’s ruling, this may be an easier path (although the tax authority may argue that the ruling has not yet entered into force, so the old interpretation applies).

Practical experience in the coming days will show whether any of the above legal remedies have a chance of success.